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Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law and is also professor of government at the University of Texas at Austin.

August 15, 2016|

American Tradition in Theory and Practice

by Sanford Levinson|1 Comment

In response to: The Unforgettable Fire: Tradition and the Shape of the Law

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving…

The Courts and Tradition: A Begrudging Respect

by David Bernstein

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…

Legal Realism, Legal Revolution

by James Stoner

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

April 4, 2016|Article V, Federalist 1, Federalist 10, Federalist 49, Publius, The Federalist

Publius for the People: A Conversation with Sanford Levinson

by Sanford Levinson|1 Comment

Sandy Levinson joins this edition of Liberty Law Talk for a conversation about his latest book, An Argument Open to All: Reading The Federalist in the 21st Century.

March 8, 2012|Constitutional Interpretation, Constitutionalism, Federalist 14, Originalism, Thomas Jefferson

A Jeffersonian Proposal for the Constitution

by Sanford Levinson|6 Comments

There are two basic approaches one can take to thinking about the United States Constitution. One is to treat it is a given, whether that refers only to the specific document proposed and ratified in 1787-88 with subsequent textual amendments or to the body of case law developed over the past two centuries. In any event, the lawyerly task with regard to a constitution that is treated as already existing is to engage in debates about its interpretation.

What, for example, are the powers of the President? One might focus on the difference in language between Article One (“all powers herein granted”) and the more laconic language of Article II (“the executive power”) or on the meaning of the Commander-in-Chief Clause; or, commonly, one might parse at length various opinions issued by the Supreme Court over the years, including, of course, Justice Jackson’s now-canonical opinion in the Steel Seizure Case, with its “three-part test” elaborating the basic structure of presidential authority. There are, of course, literally thousands of other possible examples.

January 31, 2012|

Not Contrarian Enough: A Response to Michael Stokes Paulsen’s Critique of Contemporary Courses on Constitutional Law

by Sanford Levinson|1 Comment

In response to: The Uselessness of Constitutional Law

I agree with approximately 90% of Michael Stokes Paulsen’s remarks on the “uselessness of constitutional law,” so anyone looking for a defense of the professoriate to teach constitutional law will be sorely disappointed. That leaves the 10% difference between us, to which I shall turn presently. First, though, I want to take a few lines to underscore the points where we agree. I am not sure the right question is why we teach constitutional law at all in law schools. After all, we teach lots of courses that are fairly esoteric and/or of interest primarily to the professors who teach them. …

The Usefulness of Constitutional Law

by Nelson Lund

As usual, I find myself charmed by Mike Paulsen’s provocative style, which is on full display in The Uselessness of Constitutional Law. And, as usual, I agree with much of what he says. He is certainly right, for example, that constitutional law should not be taught in the manner of a bar preparation course. I…

Structural Realism Has No Clothes

by Paul D. Miller

What is remarkable is that, despite decades of scholarship and change, today’s structural realists have revised or changed almost none of their views.